Revenge Porn

Julian Huppert MP, a Liberal Democrat Member of
Parliament, has called for a new law to outlaw “revenge porn”. Now for those who don’t know, revenge porn is
the name given to the publishing online of intimate photographs of an ex-partner
for the purposes of taking revenge for some real or imagined offence by the “victim”.

Mr Huppert correctly points out that “[l]ives can be
ruined, personal relationships destroyed and jobs lost”. That’s terrible, but it raises a couple of important
questions: a) does the harm necessitate yet another criminal offence? And b) is the criminal law an appropriate
tool for dealing with this type of behaviour, i.e. should “revenge porn” be a
crime?

Over the past 20-years or so, it has become very trendy
for Governments in the UK to create new criminal offences – I believe that by
the end of the last Labour government they had created more new crimes then
every other government before them put together! As a student barrister, I was taught that
going to law, i.e. suing somebody, should be a last resort. Equally, creating a new crime should be a
last resort for a government.

Let’s have a quick think about what “revenge porn”
actually is. These are photographs of
people, usually but not always women, in intimate situations – they may be
straightforward nudes or photographs of the individual in flagranti. They are images taken with the person’s permission;
if they were not then taking the photographs would already be a crime under
section 67(3) of the Sexual Offences Act 2003.
They are photographs of adults; again, such photographs of people under
18-years of age are already criminal.

Taking a common sense approach, we all know that if we
allow somebody else to have an intimate photograph of ourselves then we are
taking a risk that the image will appear online or will be seen by somebody
else – whether deliberately, accidentally or as a result of the device they are
stored on being stolen. To my mind,
criminal law is very much a bandage for covering a wound. It is not great at preventing crime happening…
if you don’t believe me then take a look at how many crimes happen every year,
all committed by people who have not been put off by the illegality of their
actions!

Prevention is far better than a cure. It occurs to me that children should be
taught to think their actions through and consider what the consequences of an
action might be. Thus, when they reach
their late teens (and even far greater ages – anybody remember Leslie Grantham?)
they might consider the possible consequences of sharing these types of
photographs and not do it!

In addition, we might try teaching children that when
somebody shows a great deal of trust in us we should not break that trust.

One of the things I encounter regularly and which I see
as a major problem in our society is the abdication of responsibility. I represented somebody at trial once who took
a taxi to court each morning. He was on
benefits and eventually ran out of funds for his taxi. Rather than accept that he should have just
taken a bus the short distance from home to court he blamed the court for not
paying for his transport! When I did
legal aid work, I regularly came across parents who blamed teachers, police,
courts and anybody but themselves for their child’s inability to accept
authority. Duty solicitors will
recognise the type who shows up at court for their trial having done nothing to
prepare their case or get a solicitor and expect to rely on the duty only to
become angry when they find the duty won’t help them.

Politicians add to the sense that everything wrong in
your life is somebody else’s fault with constant calls to criminalise every
type of reprehensible conduct.
Ultimately, “revenge porn” photographs are pictures that an adult has
agreed to allow somebody to take or keep.
Quite frankly, if you are old enough to vote then you are old enough to know
that when you take a picture of your tits, balls or whatever there is a chance
it will end up on the internet and old enough to make that decision.

Turning back to the two questions I originally posed
myself: does the harm necessitate a new criminal offence? I answer this in the negative. There is potential for harm to the person in
the photograph but the harm is obvious and easily foreseeable at the time the
photograph is taken. The people we are
talking about are adults with the power to join the army, marry and vote at
elections, if they cannot weigh up the risks and benefits then they shouldn’t
be allowed to leave their house in the morning!

The second question was: is the criminal law an
appropriate tool for dealing with this type of behaviour? Criminal law is a sledgehammer that should be
used in appropriate circumstances. It is
not good at shaping behaviour. Would a
criminal offence stop the photographs circulating online? Not a chance.
Would it stop an angry ex-boyfriend who feels he’s been wronged posting
a photograph online? No, it doesn’t stop
people committing other crimes so why would it stop this?

We each have decisions to make in life. We each know the risks and benefits of each
decision we take. Each one of use must
accept that we are responsible for those decisions and their foreseeable
consequences.

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Comments

As a ex-police officer I strongly agree with the specific example and the greater point regarding this and previous governments obsession with creating new criminal offences. In a time when the police, CPS and criminal justice system as a whole are expected to do more with less have the Government not considered the simple solution of creating less business by ceasing to enact new offences on a weekly basis. I would argue many current criminal offences should be removed from the statue entirely whilst many others would be more appropriate as civil wrongs. Harassment without fear of violence and residential squatting being two off the top of my head. If the current proposal to create a new offence of "domestic abuse" comes to fruition I have no doubt that firstly, the offence would be poorly drafted and overly vague, and secondly this will lead to the police being obliged to investigate partners for swearing or saying anything insulting to each other within the home. This offence alone will be enough for the police service to collapse under the burden of its work load.

" I represented somebody at trial once who took a taxi to court each morning. He was on benefits and eventually ran out of funds for his taxi. Rather than accept that he should have just taken a bus the short distance from home to court he blamed the court for not paying for his transport!"I can explain this. His reaction is really rooted in indignation, viz: If you have the gall to put me on trial, then you must pay for me to attend court every day so that I am not one penny out of pocket, because being even a single penny out of pocket is a victory for the forces of darkness. You have already inconvenienced me with this kangaroo court, and when I am acquitted, I expect massive compensation, to be paid by the prosecutors and other court staff who have conspired against me. This will give them a metaphorical bloody nose so that they know never to haul me into court ever again.

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